O'Brien v. Central Iron And Steel Co.

• Decision Date: 18 March 1902
• Docket Number: 19,792
• Citation: 63 N.E. 302,158 Ind. 218
• Parties: O'Brien et al. v. Central Iron and Steel Company et al
• Court: Indiana Supreme Court

63 N.E. 302

158 Ind. 218

O'Brien et al. v. Central Iron and Steel Company et al

No. 19,792

Supreme Court of Indiana

March 18, 1902

From Clay Circuit Court; S. M. McGregor, Judge.

Action by Catherine O'Brien and others against the Central Iron and Steel Company and others for damages for the obstruction of a street. From a judgment for defendants, plaintiffs appeal.

Reversed.

E. S Holliday and F. A. Horner, for appellants.

G. A Knight, for appellees.

OPINION

Hadley, J.

This case comes to us from the Appellate Court under § 15 of the act concerning appeals, approved March 12, 1901, Acts 1901, p. 569.

Appellants prosecute the action to recover of appellees damages for the obstruction of a street upon which their property abuts. Judgment against appellants upon demurrer to the complaint. The sufficiency of the complaint is therefore the only question presented.

In substance, it is averred in the complaint that the plaintiffs owned a house and lot abutting on Church street, in the city of Brazil, which they now, and have for many years, occupied as a residence; that when they purchased and first occupied said lot, which was before the grievances complained of, Church street was a regularly platted, dedicated, improved, and traveled street, and constituted the only way, and was exclusively used by the plaintiffs in going from, and returning to, their home, and that in purchasing said real estate they took into consideration its location on said street, which gave them convenient access to all parts of the city, and particularly to that part of the city lying east of their residence, where the business of the city is principally carried on; that in 1899 the defendants constructed, and still maintain, a permanent building on, over, and across said street, thereby completely obstructing the street, and preventing travel thereon; that said obstruction is located about 200 feet east of the plaintiffs' said residence, and between said residence and the business portion of the city; that there is no cross street, or other outlet, between said obstruction and the plaintiffs' said property, and plaintiffs' egress and ingress to and from their property to the east is wholly barred, cut off, and destroyed; that by reason of the obstruction plaintiffs are put to great trouble and inconvenience in getting to and from their property, and their property has been thereby greatly diminished in value; that their property immediately before the obstruction was of the value of $ 1,200; that by reason of the obstruction of the street as aforesaid their property became and is worth not exceeding $ 600; and that said depreciation was caused wholly by the wrongful act of the defendants in obstructing said street.

Appellees contend that the injury of appellants, exhibited by the complaint, is different only in degree from the injury suffered by the community at large, and hence no action for the recovery of damages will lie. On the other hand appellants contend that the injury complained of is private and special, and different in kind from the public injury, and that damages are recoverable therefor as for any other private wrong. This particular controversy is the question for decision.

The erection and maintenance of a permanent building across a public street, thereby closing it against travelers, constitutes a public nuisance, subject to indictment and abatement by the State. City of Valparaiso v. Bozarth, 153 Ind. 536, 47 L. R. A. 487, 55 N.E. 439, and cases cited on page 538. But the individual has no right of action to recover damages from the author of such public nuisance, unless he is able to show that he has sustained some particular or peculiar injury, differing in kind, and not common to the general public. Martin v. Marks, 154 Ind. 549, 555, 57 N.E. 249. This doctrine springs from the principle that the law affords no private remedy for anything but a private wrong; that the damages resulting from a common, or public, nuisance, such as affects all the public in the same way, though perhaps in different degrees, is of a nature to be impossible of apportionment among the injured public, and therefore the only action maintainable is by the State. 3 Blackstone's Com., p. 219; Fossion v. Landry, 123 Ind. 136, 140, 24 N.E. 96; Dantzer v. Indianapolis Union R. Co., 141 Ind. 604, 610, 34 L. R. A. 769, 50 Am. St. 343, 39 N.E. 223; Manufacturers' Gas, etc., Co. v. Indiana Gas, etc., Co., 155 Ind. 566, 58 N.E. 851.

The inquiry therefore is, does the complaint show that, by reason of the obstruction placed in Church street by the appellees, appellants have suffered an injury peculiar to themselves, and of a kind different from that suffered by the other residents of the community? The complaint alleges that when appellants purchased their property, and took up their residence therein, Church street, upon which it abuts, was a regularly platted, dedicated, improved, and traveled street, and furnished them the only means of going to and from their residence.

Under our law, when land is platted into lots, streets, and alleys and recorded, the act is accepted as a dedication by the owner to the public of a continuing right to travel such streets and alleys, and a conveyance of a lot abutting on such a street carries with it not only the fee in the soil to the center of the street, but also the right to use such street, as dedicated, in perpetuity, for the...